July 28, 2020
Dear Justice Corner,
Do I have to stop doing Zoom appearances now that the courthouse is opening up more? Also, I used to do in-person hearings for fee waiver petitions, can those be done remotely?
Dear Judge StaySafeStayonZoom,
As you know, on May 22, 2020, the Illinois Supreme Court announced amended rules for the broad use of remote court appearances. The Court adopted Illinois Supreme Court Rule 45 and amended Rule 241. These rules are permanent, not just temporary ones during the pandemic, so no, you do not have to stop doing Zoom appearances. To help courts implement, expand, and encourage the use of remote court appearances, the Illinois Supreme Court also adopted a Policy on Remote Court Appearances in Civil Proceedings.
You can find a fillable sign to use in your courthouse to help share information about remote appearance options, as well as a Judicial Bench Card and a public-facing tip sheet for SRLs about appearing by phone or video at http://illinoiscourts.gov/CivilJustice/Training_Education/training_education.asp.
Fee waivers can be handled remotely under the Rules by telephone or video conference, and also carry some additional considerations. With the overdue attention in recent weeks to addressing longstanding systemic racial inequality in our society generally and in our justice system in particular, which the Supreme Court highlighted on June 22, 2020, we believe it is more critical than ever that we give special attention to ensuring low-income and self-represented litigants have equal access and are treated fairly as the courts reopen.
When it comes to fee waivers, there is no requirement for litigants to appear at a hearing in person or remotely. Instead, Rule 298 instructs that judges, when ruling on an application, "shall either enter a ruling on the Application or set the Application for a hearing." Since there is no requirement to have any type of hearing, courts should attempt to reduce the number of persons appearing personally in courthouses by deciding as many applications as possible on the face of the documents and only ordering a hearing when there is a factual issue to resolve. In situations where a factual question arises, judges should schedule a remote hearing by telephone or video conference with the litigant (if the litigant has the technology to do so), rather than requiring them to travel in-person to the courthouse.
Requiring a litigant to appear in person (or via video conference) as part of a fee waiver application not only creates procedural hurdles for litigants who already face difficulties accessing the courts, but also opens the door for unintended biases to influence the decision.
Dr. Andrea Miller, PhD, JD, who has been consulting with the Court on issues related to bias, recommends that judges decide fee waivers on the applications themselves, whenever possible. She urges us to think about situations like where a litigant borrows a nice suit from a friend, puts on imitation pearl necklace, and brings an imitation Louis Vuitton purse to court in an effort to make a good impression that could lead a judge to feel that the litigant has not been totally forthcoming in the application for a fee waiver and potentially triggers unconscious stereotypes of poor people.
Decades of research in psychology show that all people, including judges, are influenced in unintended ways by social information like physical appearance, race, and gender. Requiring an appearance (whether in person or by video conference) during a fee waiver application process creates an unnecessary risk that factors like physical appearance, race, gender, and now home environment, may inappropriately influence the decision. In person or by video conference, litigants may appear to have more or fewer financial means than they really do. The visual information a judge sees may actually prevent the judge from making an accurate and unbiased decision.
The Access to Justice Division of the AOIC is ready to assist your court in any way it can to ensure litigants maintain access to justice during this time. Reach out to Jill Roberts at email@example.com to discuss any of the topics mentioned here or to obtain copies of resources. As always if you have questions, comments, concerns, suggestions, or stories about self-represented litigants, please email firstname.lastname@example.org.
-Justice Corner, Illinois Supreme Court Commission on Access to Justice's Court Guidance and Training Committee
- Chair, Judge Jo Beth Weber, Jefferson County
- Presiding Judge Clarence M. Darrow, Rock Island County
- Presiding Judge Sharon M. Sullivan, Cook County
- Associate Judge Elizabeth M. Rochford, Lake County
- Chief Judge Michael Kramer, Kankakee County
- Justice Michael B. Hyman, 1st Appellate District
- David Holtermann, Lawyers' Trust Fund, Chicago
- Wendy Vaughn, Clinical Professor NIU, Member of Access to Justice Commission
- Jill Roberts, Access to Justice Division Staff